Author : Mahak Chatkele , a student of Rabindranath Tagore university
INTRODUCTION
Be it power or money, no matter how influential one believes himself to be ; no fact gives him the authority. And no woman is rapeable, despite whatever, ever.
Her name was Banubai. Not a lawyer, not an activist, not someone the system was built to listen to. More than anything, she was a woman. How devastating a night could be the police meant to protect us destroyed her.
Madhukar Narayan Mardikar was no stranger. He was the Assistant Police Inspector who wore his uniform like permission. He entered her home and committed what no position, no power, and no past of the victim can ever justify. When Banubai reported it, the courts did not examine what he had done they examined who she was.
She was called a woman of “easy virtue.” As if virtue determines violation. As if character cancels crime.
The Supreme Court of India in 1991 finally said otherwise : that every woman, regardless of her past, her choices, or how society chooses to judge her, holds an inviolable right to privacy and bodily integrity. Her story became a judgment. And that judgment drew a line India had refused to draw for far too long.
ABSTRACT
In 1991, the Supreme Court of India delivered a judgment that the legal system owed women long before it arrived. State of Maharashtra v. Madhukar Narayan Mardikar dismantled a deeply embedded judicial prejudice : the belief that a woman’s moral character determines the credibility of her testimony in cases of sexual assault. The case arose from the rape of Banubai, a woman whose account was dismissed by lower courts on the ground that she was a woman of allegedly loose character. The Supreme Court reversed this, holding unequivocally that every woman possesses an inviolable right to privacy and bodily integrity, irrespective of her past conduct or social reputation.
This article examines the facts, reasoning, and lasting legacy of the Mardikar judgment. It analyses what the case changed in Indian evidentiary law, what gaps it left behind, and how its principles echo through subsequent legislation including the Bharatiya Nyaya Sanhita 2023 ,thirty years after a court finally chose to listen.
TO THE POINT
The greys aren’t for theories ; they have become a survival fear instinct for women instead.
The Indian courtroom, since time memorial it was built, has carried an uncomfortable grey truth , that when a woman reports sexual assault, every fact otherwise, may it be her clothes, her choice, everything becomes evidence, except the rapist/abuser. Every fact becomes against her indeed, not against him. So visibly noted ; the duality of law, visible in its full competence.
Before Mardikar, Indian courts operated under a judicial culture that treated a woman’s character as directly relevant to whether she could be believed. A woman deemed promiscuous, unconventional, or morally questionable was considered an unreliable witness to her own assault. The law did not say this explicitly but the courts practised it consistently, quietly, and without accountability.
The roots of this prejudice run deep. The Mathura Rape Case of 1979 — Tukaram v. State of Maharashtra exposed how far Indian courts were willing to go. The Supreme Court acquitted two policemen who had raped a sixteen-year-old girl inside a police station, reasoning that her lack of resistance implied consent. The outcry that followed sparked India’s first serious conversation about rape law reform. But conversation is not change.
Mardikar, decided twelve years later, went further. The Supreme Court held that no woman — regardless of how society labels her ; can be denied the protection of law. Her past is not consent. Her reputation is not permission. Her character is not a defence available to her attacker. A woman of allegedly easy virtue has the same right to say no as any other woman and the law is bound to hear it.
Yet thirty years later, the ghost of character evidence has not fully left Indian courtrooms. Victims are still questioned about their pasts. Judgments still carry traces of the same prejudice Mardikar tried to bury.
One judgment changed the law. But changing the law did not change the courtroom. And until it does, Banubai’s fight remains unfinished.
THE PROOF
Factually, data always shows the uncovered hidden grey stories which are never put in the front ki limelight. Ironically, if the recorded data is so high, and the cases that are worked upon are so less what can we say about the under the bed stories that never got a voice to call it out.
Numbers have a way of saying what courtrooms refuse to. According to the National Crime Records Bureau, over 31,000 rape cases were registered across India in 2022 alone. Of these, the conviction rate stood at a troubling 27.4% — meaning nearly three out of every four reported rape cases did not result in conviction. What lives inside that gap is not always innocence. Often, it is a system that still finds ways to doubt the woman before it doubts the crime.
Underreporting compounds the crisis further. Studies by civil society organisations estimate that for every rape case registered in India, several go unreported buried under fear, shame, family pressure, and a deep-seated distrust of how institutions respond to survivors. Women from marginalised communities, lower economic backgrounds, and rural areas face the sharpest end of this silence.
The legacy of character-based credibility assessment did not disappear with Mardikar. Research into Indian trial court judgments post-1991 reveals that questions about a survivor’s past relationships, clothing, and behaviour continue to surface sometimes explicitly, more often implicitly.
The two-finger test, officially banned by the Supreme Court in Lillu v. State of Haryana (2013), was still being administered in several states years after the ban.
The proof is not just in the data. It is in the distance between what the law says and what the courtroom does. And in every story that never got a voice to call it out.
LEGAL JARGON
Character Evidence : Information about a person’s past conduct or moral reputation introduced in court proceedings. In rape trials, this was historically used to undermine the credibility of the survivor rather than establish facts of the case.
Prosecutrix : The female complainant in a criminal case involving sexual assault. Indian courts have long debated the evidentiary weight to be given to the sole testimony of a prosecutrix.
Bodily Integrity : The fundamental right of every individual to sovereignty over their own body, recognised as flowing from Article 21 of the Constitution of India.
Moral Turpitude : Conduct considered contrary to community standards of honesty or morality. Courts previously used this construct to discredit women deemed to have lived unconventionally.
Consent : In criminal law, a free, voluntary, and unambiguous agreement. Past conduct, relationship history, or silence cannot be construed as consent under Indian law.
Two-Finger Test : A medically discredited and judicially banned examination previously conducted on rape survivors, premised on the assumption that prior sexual activity determines credibility — an assumption the Supreme Court has explicitly rejected.
CASE LAWS
The journey of judicial attitude toward sexual assault survivors in India is not a straight line : it is a series of steps forward, steps backward, and hard-won corrections that came too late for too many women.
Tukaram v. State of Maharashtra (1979) — The Mathura Rape Case
This is where the story must begin. A sixteen-year-old tribal girl named Mathura was raped by two policemen inside a police station. The Supreme Court acquitted both accused, holding that because Mathura had not raised an alarm and bore no visible injuries, her consent could be inferred. The judgment caused nationwide outrage and is widely regarded as one of the most regressive decisions in Indian legal history. It exposed with brutal clarity how consent was being constructed around the victim’s silence rather than the accused’s conduct.
State of Maharashtra v. Madhukar Narayan Mardikar (1991) — The Turning Point
Twelve years after Mathura, the Supreme Court delivered Mardikar ; a judgment that directly confronted what courts had been doing for decades. Justice Jayachandra Reddy, writing for the bench, held that even a woman of easy virtue has a right to privacy that no one can violate. Her testimony could not be discarded simply because she had lived unconventionally. The court reinstated the conviction of the accused police officer, making clear that a uniform is not a licence and a woman’s past is not an invitation.
Lillu v. State of Haryana (2013)
The Supreme Court declared the two-finger test unconstitutional, holding that it violated the dignity and privacy of rape survivors. The judgment recognised that a woman’s sexual history is irrelevant to the question of whether she was assaulted ; a principle Mardikar had established two decades earlier and courts had continued to ignore.
Independent Thought v. Union of India (2017)
The Supreme Court held that sexual intercourse with a minor wife constitutes rape regardless of marital status, striking down the exception that had long protected perpetrators within marriage. The judgment extended Mardikar’s core principle that no relationship, no status, and no character assessment can override a woman’s right to bodily integrity.
Together these judgments trace a judicial reckoning that is still incomplete. Each case built on the last. Each arrived later than it should have. And each left behind women who needed it sooner.
ANALYSIS
Mardikar did not arrive in a vacuum. It arrived in the aftermath of decades of judicial failure and what it did, quietly but decisively, was refuse to continue that failure.
What the Judgment Changed
Before 1991, the evidentiary framework around rape trials in India operated on an unspoken but practiced assumption : that a woman’s character was relevant to her credibility. Defence lawyers routinely questioned survivors about their past relationships, their lifestyle, their reputation. Judges accepted this line of questioning without challenge. The law did not explicitly permit it, but it did not stop it either.
Mardikar stopped it. Justice Jayachandra Reddy’s reasoning was simple and non-negotiable the right to privacy belongs to every woman, not only to women who meet a certain moral standard. By holding that Banubai’s testimony could not be discarded on the basis of her alleged character, the Supreme Court effectively declared that character is not evidence. It is prejudice dressed as procedure.
This was a seismic shift in principle. For the first time, an Indian court said clearly who she is does not determine what was done to her.
What the Judgment Left Behind
But principles without enforcement mechanisms are fragile things. Mardikar changed the law at the apex level. It did not immediately change what happened in district courts, in police stations, in the rooms where survivors first had to tell their stories to strangers who were not always trained to listen.
The years following Mardikar revealed the limits of judgment without legislative backing. Character-based questioning continued in trial courts. Police continued to discourage complaints through informal assessments of the survivor’s lifestyle. Medical examinations continued to carry undertones of the same prejudice the Supreme Court had rejected.
It took the Criminal Law Amendment Act of 2013 passed in the wake of the Nirbhaya case to formally embed Mardikar’s principle into statute. Section 53A of the Indian Evidence Act was amended to explicitly prohibit evidence of a victim’s past sexual history from being used to establish consent or to assess credibility. Mardikar’s principle finally had legislative teeth twenty-two years after the judgment.
What BNS 2023 Did and Did Not Fix
The Bharatiya Nyaya Sanhita 2023 and the Bharatiya Sakshya Adhiniyam 2023 carried this prohibition forward, replacing the amended Evidence Act provisions with corresponding protections for survivors in the new statutory framework. On paper, the position is clear ; a survivor’s sexual history is inadmissible and irrelevant.
But legislation addresses what lawyers argue in court. It does not address what investigating officers ask at the first point of contact. It does not address how medical examiners frame their reports. It does not address the informal gatekeeping that happens long before a case reaches a courtroom.
The duality of law visible in its full competence remains. The statute says one thing. The lived experience of survivors navigating the system says another.
What Remains
Mardikar gave India a principle it needed. Subsequent legislation gave that principle a statutory home. What neither has fully delivered is a system that practices what it has been told to preach.
The judgment was a beginning. Thirty years later, it is still waiting to become a reality.
CONCLUSION
Her name was Banubai. She did not walk into a courtroom with a law degree or a powerful surname. She walked in with a truth and for years, that truth was not enough.
The Indian legal system has a long habit of putting the wrong person on trial. When a woman reports assault, it is her character that gets examined, her past that gets produced as evidence, her life that gets held up to a standard her attacker is never asked to meet. Mardikar did not end this habit. But it named it. And naming a wrong, even thirty years too late, matters.
What the judgment gave India was not just a legal precedent it was a statement of principle. That virtue is not a prerequisite for justice. That a woman’s right to say no does not depend on how many times she has said yes before. That the law exists to protect people, not to audit their choices before deciding whether they deserve protection.
But a statement without enforcement is just words on paper. There are many women who are yet to describe their agony to a system that cannot stand on its own legs. Their lives and bodies fight for it on their own loss. The system that was meant to protect us , to shield us — is the one we have had to fight with, now and always.
Banubai got her judgment. Millions of women are still waiting for theirs.
The greys aren’t for theories. They have become a survival fear instinct for women who report, for women who don’t, and for every woman who has ever had to calculate whether the truth is worth telling.
FAQ
Q1. What was the core legal principle established in State of Maharashtra v. Madhukar Narayan Mardikar (1991)?
The Supreme Court held that every woman, regardless of her moral character or social reputation, possesses an inviolable right to privacy and bodily integrity. A woman’s past conduct or alleged promiscuity cannot be used to discredit her testimony in cases of sexual assault, nor can it be treated as implied consent to any act committed against her.
Q2. Can a woman’s sexual history still be used against her in Indian courts today?
Legally, no. The Bharatiya Nyaya Sanhita 2023 and its procedural counterpart explicitly prohibit the use of a survivor’s past sexual history as evidence in rape trials. However, the practical reality inside courtrooms does not always reflect what the statute commands. Character-based questioning continues to surface in arguments and cross-examinations, revealing the gap between legislative intent and ground-level justice.
Q3. Why does the Mardikar judgment remain relevant more than thirty years later?
Because the prejudice it addressed never fully left. Every time a survivor is asked what she was wearing, who she had previously been with, or why she did not resist , Mardikar is being ignored. Its relevance is not historical. It is present tense.
